SEPTEMBER

2005

Practice Pointer

Discharge for “Noncompliance”:

Should You File an FAL?

By Tiffany L. Scully

 

 

   After several missed medical appointments, an authorized treating provider (ATP) may discharge the claimant “at MMI for noncompliance.”  Should you file a Final Admission or not?

   In Ly v. Imperial Headware, W.C. 4-375-030 (Feb. 18, 2000), the ICAO upheld the ALJ’s determination that the ATP’s report releasing the claimant to full duty and indicating the claimant was discharged for “noncompliance” did not terminate the claimant’s entitlement to TTD benefits.

   In contrast, in Estep v. James Cape & Sons Co., W.C. No. 4-184-039 (July 17, 1996), the ICAO upheld the ALJ’s reliance upon the ATP’s MMI report which discharged the claimant at MMI for noncompliance, but nevertheless provided an impairment rating for the claimant. 

   The ICAO noted that the question of whether the claimant meets the statutory definition of MMI is usually factual in

nature.

   Thus, unless the record unequivocally establishes that the treating physician applied improper criteria in evaluating the claimant’s status, the ALJ may not purport to interfere with the ATP’s determination of MMI.  Estep supra.

   If you receive an MMI report from an ATP discharging the claimant at MMI for noncompliance, the safest course of action is to schedule the claimant for a certified-letter demand appointment with the ATP.  

   You should also send a letter to the ATP asking him/her to address MMI and impairment following their physical examination of the claimant. 

   If the claimant fails to show for the demand appointment, you may terminate Temporary Disability benefits per Rule IX. 

   If there is no action for six months, you may file a Motion to Close for Failure to Prosecute.

Stefanski v. ICAO, 04CA1296 (Ct. App. Sept. 8, 2005):  The Court of Appeals (CA)held if a DIME does not place Claimant at MMI, but an authorized treatment provider (ATP) does so later, Respondents may not file a Final Admission (FA) consistent with the ATP’s findings. 

   Rather, Respondents must return Claimant to the DIME to be placed at MMI before filing a FA.

  Claimant sustained a back and foot injury in 1998 and Respondents subsequently

filed a FA in 1999 after the ATP placed Claimant at MMI.  A DIME found Claimant was not at MMI and Claimant returned to the ATP for treatment.  In 2001, the ATP placed Claimant at MMI and Respondents filed another FA. 

   The CA held that once Claimant timely initiated the DIME process and the ATP placed him at MMI for the second time, Respondents had the “obligation” to return him to the DIME for a follow-up exam-ination.  Respondents could not simply file

an amended FA in an attempt to close the case and shift the burden to Claimant to initiate and bear the cost of another DIME.

   The CA recognized their holding was contrary not only to a series of cases by the Industrial Claim Appeals Office, but also the Director’s interpretation. 

   However, the CA held although interpretations of statutes by administrative agencies are customarily given respect and accorded deference by the courts, they are not binding on a court.

Respondents Must Return Claimant to DIME before Amended FA:

Court of Appeals Holds ICAO and Director’s Interpretations not Binding

 

Kolar v. ICAO, 04CA2194 (Ct. App. Sept. 8, 2005):  The Court of Appeals (CA) held the question of whether a Claimant has suffered a scheduled or whole person impairment is a question of fact for the ALJ, not the DIME physician.

   Claimant sustained injuries to her right and left upper extremities.  The DIME physician diagnosed both injuries as cumulative trauma disorder and pursuant to Rule XIX(G)(2), converted the scheduled impairment ratings for both injuries to a combined whole person impairment.

   The ALJ found Claimant had not suf-fered any functional impairment beyond both extremities and therefore the injuries were not to be converted to whole person.  The CA affirmed.

   The CA held Rule XIX(G)(2) must be read as requiring a cumulative trauma disorder to be compensated as a whole person impairment only where Claimant has suffered a functional impairment not found on the schedule pursuant to an ALJ’s findings.

ALJ Ultimately Decides Type of Impairment

A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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ATTORNEYS AT LAW